Paul Gordon's blog

Across Alabama, local judges are openly defying a federal judicial order to grant marriage licenses to same-sex couples. The New York Times reported yesterday that 44 of the state's 67 counties were not granting licenses. The state is a checkerboard, where gay and lesbian Alabamans are locked out of full citizenship across vast swaths of the state based on the whims of local officials.

As many observers have pointed out, this week's events make Americans recall the state's historic resistance to federal court orders striking down segregation. But they show us an image of the future, as well ... or at least the future as the Far Right would have it.

Emboldened by the Supreme Court's distortion of religious liberty in the Hobby Lobby case, some state legislatures are considering bills that would allow government officials to decline to perform marriages that offend them religiously. A number of states are also considering legislation to let people exempt themselves from anti-discrimination and other laws if compliance would offend them religiously. While misleadingly framed as protecting religious liberty, these bills are really intended to allow discrimination and to let conservatives impose their religious beliefs on others.

So what would America look like if we allowed such massive holes to be poked in laws that are supposed to protect everyone? What if lesbian and gay couples were legally treated as outsiders in their home communities, had fewer legal rights than anyone else in those communities, and had to travel anywhere from another neighborhood to another county to find a bakery willing to make a cake for them, a hotel willing to rent them a room for the night, or an employer willing to grant them spousal employment benefits? What if a woman's ability to find adequate healthcare depended on finding an employer and a pharmacist with compatible religious beliefs? What if people's basic rights varied depending on where they were, and upon the prevailing religious beliefs of people in the area? What would such a religiously balkanized nation look like?

It would look a lot like Alabama does today. And it would be ugly.

For decades, the Far Right has fought tooth and nail to impose their religious beliefs through government fiat. They have fought to prevent gays from marrying, to prevent women from exercising reproductive choice, to have public schools indoctrinate other people's children with their own religious beliefs, ... the list goes on. And when they fail at changing the laws to match their religion, they seek exemptions from those laws in the name of "religious liberty."

Last June, the Supreme Court gave certain for-profit corporations the right to deny women vitally important (and statutorily required) healthcare coverage that offends their employers' religious beliefs, claiming it was simply protecting the employers' religious liberty. Across the country, right wing extremists are seeking to empower individuals and business owners whose religious beliefs are offended by LGBT equality to exempt themselves from anti-discrimination laws — again, supposedly in the name of religious liberty. Conservative Christians aggressively seeking to deprive others of their legal rights regularly portray themselves as the victims of religious persecution.

People For the American Way has released a new report examining the many ways that religious liberty issues are increasingly coming up in public policy debates in communities across the nation. But this isn't religious liberty as it has been understood throughout our nation's history.

Authored by Senior Fellow Peter Montgomery, Religious Liberty: Shield or Sword? examines how the Far Right is working to transform this core American value from a shield protecting individuals' religious freedom into a sword that harms other people and undermines measures to promote the common good.

The report provides vital factual background and analysis to help readers better understand how religious freedom principles have traditionally been regarded, as well as how they are being twisted by a far right movement in an effort to reverse its fortunes as their substantive arguments are increasingly rejected by the American public. These distorting efforts come from conservative advocacy organizations, state and federal legislators, and even a narrow majority of the United States Supreme Court.

This report is an important tool to help understand and confront the Right in public policy debates across the country, as they increasingly seek to use religious liberty as a sword to deny rights to others, and as they continue to portray themselves as victims of religious persecution.

If the president announces executive amnesty, the new Senate majority leader who takes over in January should announce that the 114th Congress will not confirm a single nominee—executive or judicial—outside of vital national security positions, so long as the illegal amnesty persists.

While such a refusal to perform one of the basic functions of the Senate would harm the entire nation, the damage in Texas would be particularly severe. No state has more judicial vacancies than the Lone Star State. No state even comes close.

As of today, Texas is suffering from eleven current federal court vacancies, with another four known to be opening in the next few months. The White House has worked closely with Sens. Cruz and Cornyn to identify potential nominees, but progress has been slow: Only six of the vacancies even have nominees; three of these have not yet had their committee hearings.

But the other three – for the Eastern and Western Districts – advanced through the Judiciary Committee this morning and are now ready for a confirmation vote by the full Senate. All three would fill vacancies formally designated as judicial emergencies by the Administrative Office of U.S. Courts. Confirming them would be a good start at addressing the vacancy crisis in Texas.

The situation is even more dire in Texas, where the Senate has a chance to fill three vacancies in the Eastern and Western Districts. The Western District judgeship has been vacant since 2008, and the Judicial Conference has asked for five new judgeships there to carry the load on top of filling all the existing vacancies. Chief Judge Fred Biery discussed the need for new judges last year, saying, "It would be nice to get some help. We are pedaling as fast as we can on an increasingly rickety bicycle." Judge David Ezra, formerly of Hawaii, explained why he was moving to Texas to hear cases in the Western District: "This is corollary to having a big wild fire in the Southwest Border states, and fire fighters from Hawaii going there to help put out the fire."

The Eastern District of Texas is in similar need of getting its vacancies filled during the lame duck: Of the nation's 94 federal districts, only two have had more weighted filings per judgeship than the Eastern District, according to the Administrative Office of U.S. Courts' most recent statistics. Small wonder, then, that the Judicial Conference has asked for two new judgeships there: Even if every judgeship were filled, that just isn't enough. To make matters worse, two more judges in the Eastern District have announced their intention to retire or take senior status next year, making it all the more important to fill the current vacancies now.

Even if the three nominees are confirmed during the lame duck, as they should be, more vacancies in both of those districts will open up early next year. Texas would still have eight vacancies, a number that would rise to twelve in the next few months.

To express his fury at President Obama and rally his right-wing base, Cruz would work to make sure that all these vacancies remain unfilled, which would hurt a lot of innocent Texans.

With a far-right Supreme Court majority ruling in Hobby Lobby 5-4 that for-profit closely-held corporations have religious rights under the Religious Freedom Restoration Act (RFRA), Justice Ginsburg is rightly warning that the Court has "ventured into a minefield."

Chief Justice Roberts caps his opinion in McCutcheon v. FEC by waxing eloquently about the need to ensure that elected officials are responsive to the people. This and other cases have described campaign contributions as a way to promote such responsiveness. But considering that this case is about a non-constituent buying influence in elections across the country, the passage's repeated references to constituents seems strangely out of place:

For the past 40 years, our campaign finance jurisprudence has focused on the need to preserve authority for the Government to combat corruption, without at the same time compromising the political responsiveness at the heart of the democratic process, or allowing the Government to favor some participants in that process over others. As Edmund Burke explained in his famous speech to the electors of Bristol, a representative owes constituents the exercise of his "mature judgment," but judgment informed by "the strictest union, the closest correspondence, and the most unreserved communication with his constituents." Constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials. (emphasis added, internal citations removed)

Shaun McCutcheon – whose contributions are at issue in this case – told the Court that he wanted to make contributions of $1,776 to each of more than two dozen different congressional candidates (as well as to various party committees) during the 2012 election cycle. It seems unlikely that he could have been a constituent of more than two dozen different members of Congress.

Obviously, people have a First Amendment right to participate in congressional races outside of where they live. But a stirring paragraph about political responsiveness to constituents hardly seems appropriate in a case that is all about political responsiveness to non-constituents.

The Supreme Court's McCutcheon opinion, released this morning, is another 5-4 body blow to our democracy. To justify striking down limits that cap aggregate campaign contributions during a single election cycle, the Roberts Court ignores the way the world really works and makes it far more difficult to justify much-needed protections against those who would purchase our elections and elected officials.

Americans are deeply concerned that control of our elections and our government is being usurped by a tiny sliver of extremely wealthy and powerful individuals (and the corporations they control). That is not the democracy that our Constitution established and protects. The enormous impact of money in politics can destroy a democracy, undermining its foundations by disconnecting elected officials from the people they are supposed to serve and eroding the trust of the people in their system of government.

But the Roberts Court today stressed that campaign contributions can be justified under the First Amendment only if they address "quid pro quo" corruption – i.e. bribery – despite contrary pre-Citizens United holdings with a broader and more realistic vision. A democratic system rotting at its core – a government of, by, and for the wealthy – is not corrupt in their eyes.

If a wealthy person gives millions of dollars to a party (distributed to the party's multiple candidates and PACs across the country), he clearly exercises enormous influence over the laws that get passed. What the voters want becomes far less relevant, because it's the billionaire whose money is vital to getting elected. A government where elected officials allow a few plutocrats to have enormous access and influence over their policies is not an indication of a healthy government of, by, and for the people.

As Justice Breyer write in his McCutcheon dissent:

Today a majority of the Court overrules this holding [Buckley's 1976 upholding of aggregate limits]. It is wrong to do so. Its conclusion rests upon its own, not a record-based, view of the facts. Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate's campaign. Taken together with Citizens United v. Federal Election Comm'n, 558 U. S. 310 (2010), today's decision eviscerates our Nation's campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.

Americans are organizing around the country to restore our democracy in light of Citizens United and other dangerous court opinions. Today's McCutcheon opinion gives us another reason to rally.

For one of the newest entries in the Republican spin war on the D.C. Circuit, check out conservative writer Ramesh Ponnuru's column in Bloomberg yesterday. The title alone – Republicans Shouldn't Let Obama Pack the Courts – tells you something important: A column that calls the simple act of nominating people to fill existing judicial vacancies "packing the courts" should be taken with a huge grain of salt.

As just about everyone has pointed out, "court-packing" refers to the FDR scheme to add seats to the Supreme Court in order to achieve desired rulings. Filling existing vacancies is run-of-the-mill constitutional procedure. The closest we've seen to court-packing in a long time isn't President Obama's nominating three qualified nominees to the D.C. Circuit, but the Republican Party's scheme to strip multiple judgeships from that court in order to maintain its current far-right tilt.

Ponnuru also writes that:

Starting in 2003, the Democratic minority embarked on an unprecedented series of filibusters to stop President George W. Bush's appointments to appeals courts. Back then, Republicans said there was a crisis of judicial vacancies needing to be filled. Democrats replied that the courts, especially the D.C. Circuit, were underworked and that the Republicans were trying to pack the courts with like-minded judges. Now the sides are reversed, and so are the talking points

In fact, the situations are hardly similar. Democratic filibusters of a few Bush-43 nominees were all based on their records. Whether it was Janice Rogers Brown, Brett Kavanaugh, or Miguel Estrada, the conversations during committee hearings and floor debates were about their records, not whether President Bush had a right to nominate anyone at all to the court. In contrast, Republicans signaled their intent to block President Obama's three nominees even before knowing who they would be.

Ponnuru writes that the D.C. Circuit has less work than it did when Bush's nominees were confirmed. In fact, Tenth Circuit Judge Timothy Tymkovich – the conservative, Bush-43-nominated jurist who is the chair of the Judicial Conference's Committee on Judicial Resources – testified before the Senate Judiciary Committee just a few weeks ago that this simply is not true. But even if you used the definition of caseload that Ponnuru's statement is based on (raw case filings without regard to the complexity of the cases), it still serves only to highlight GOP hypocrisy on the issue: As we have pointed out before, President Bush and Senate Republicans worked to fill these same seats in 2003 when the number of case filings was less than it is today.

Ponnuru also mischaracterizes an anonymous letter Senator Grassley claims to have received from a D.C. Circuit judge, suggesting that the letter somehow supports the notion that the current judgeships should not be filled.

First, legislators shouldn't be basing their decisions on edited comments from anonymous sources that are not even entered into the formal record or made available for public inspection and questions from senators. Secondly, it's clear from Grassley's rendition of the letter that it was talking about creating new judgeships, not filling existing vacancies. Here's what Sen. Grassley has said the anonymous judge wrote:

I do not believe the current caseload of the D.C. Circuit or, for that matter, the anticipated caseload in the near future, merits additional judgeships at this time. . . . If any more judges were added now, there wouldn't be enough work to go around. [emphasis added]

Since no one is talking about adding new judgeships to the D.C. Circuit, the quote has nothing to do with the situation before us.

Ponnuru also says that the court is actually balanced between Democratic and Republican appointees. While that is true for active judges, five of the court's six senior judges are Republican appointees. These senior judges sit on the three-judge panels that do most of the court's work, and they maintain a strong influence over the court. So when you draw a three-judge panel, there is a high likelihood that it will have a conservative majority, because Republican nominees outnumber Democratic ones 9-5, a nearly 2-1 ratio. Senate Republicans like those numbers and would like to keep them that way.

But there is a bigger picture: Even if everything that Ponnuru said was accurate, Congress has by law has established the D.C. Circuit as a court with eleven active judgeships. Senate Republicans don't like that, so they are using obstruction to make it de facto an eight-judge court. There are proper, constitutionally mandated ways of changing the law: Get Congress to pass a bill and the president to sign it. Nullifying and rewriting the current law through obstruction is not what the Founders had in mind, and it would make a lousy Schoolhouse Rock bit.